Академический Документы
Профессиональный Документы
Культура Документы
May 2011
Sea of Change
Regulatory reforms to 2012 and beyond May 2011
Sea of Change
Regulatory reforms to 2012 and beyond May 2011
Covered entities
Banks Plus bank holding companies (but only temporary public ownership tool applies)
Credit institutions
Credit institutions and certain investment firms Plus their holding companies
Sea of Change
Regulatory reforms to 2012 and beyond May 2011
US FDIC powers
US Dodd-Frank Act orderly liquidation authority (OLA) Orderly liquidation fund (not pre-funded, covered by risk based assessments on industry) Act prohibits any federal government bail out of covered entities
Resolution funding
Financial Services Compensation Scheme (not pre-funded; assessments on industry) Tax payer resources
Restructuring Fund administered by Financial Markets Stabilisation Agency (to be pre-funded, financed by a bank levy)
Member State resolution funds (pre-funded and topped up by assessments on industry) Member State deposit guarantee schemes
General condition that FSA determines that bank failing or likely to fail threshold conditions for authorisation and not reasonably likely that other action taken within a reasonable period of time to meet threshold conditions In addition: Sale of business/bridge bank tools: Bank of England must determine that use of tool is in public interest (financial stability, protection of public confidence in stability or protection of depositors) after consultation with
BaFin determines that the existence of the bank is endangered (in particular if the bank's own funds or liquidity have fallen below 90 per cent of the required ratios on a solo or consolidated basis), and that this in turn endangers the stability of the financial system
Range of conditions under which FDIC may be appointed conservator or receiver, including insolvency, unsafe or unsound condition, violations of certain laws, violation of final cease and desist order, undercapitalisation, money laundering offences or consent of covered entity.
Conditions Treasury Secretary must determine: (1) Default or danger of default (broadly, actual or likely insolvency or depletion of capital); (2) failure has serious adverse effect on financial stability; (3) no viable private sector alternative to proceeding; (4) proceeding is appropriate having regard to adverse impact on financial stability; (5) proceeding mitigates
Three options (in summary): (1) an insolvency based test (including depletion of capital); (2) credit institution failing/likely to fail financial conditions for authorisation; (3) Credit institution fails or likely to fail Tier 1 capital requirements (For holding companies: holding company and at least one covered subsidiaries or two or more covered subsidiaries must
Sea of Change
Regulatory reforms to 2012 and beyond May 2011
US FDIC powers
US Dodd-Frank Act orderly liquidation authority (OLA) that adverse effect; and (6) federal agency orders conversion of any convertible debt instruments subject to that order (e.g. contingent convertibles). Action must be recommended by Fed and FDIC/SEC/ insurance regulator (as appropriate) Immediate judicial review of whether decision arbitrary/capricious unless entity's board consents
FSA/HM Treasury Temporary public ownership: HM Treasury must determine that use of tool necessary to address serious threat to financial stability (last resort) after consultation with FSA/Bank of England Alternative condition (all tools): if HM Treasury has provided financial assistance to address such threat, in public interest to use tools Receivership of entity No, tools implemented by order (but Bank of England/HM Treasury may appoint/remove directors when transferring securities and residual entity after sale of business/bridge bank transfer may be placed in bank administration or other insolvency proceeding) No, tools implemented by order (but BaFin has general power to appoint a special representative to supervise/replace the bank's management or to prepare reorganisation proceedings and residual entity after sale of business/bridge bank transfer may be placed in insolvency proceedings) Yes (receivership or conservatorship)
meet these conditions) Plus: (a) last resort: no other measures likely to avert failure; and (b) necessary in the public interest (financial stability, continuity of essential services, protection of public funds, protection of depositors)
Yes (receivership)
Three alternatives: (1) receivership (authority takes control of institution) (2) appointment of administrator to resolve (3) executive order/decree applies resolution tools
Sea of Change
Regulatory reforms to 2012 and beyond May 2011
US FDIC powers
US Dodd-Frank Act orderly liquidation authority (OLA) No (FDIC prohibited from taking stake in entity; procedure intended to operate as orderly liquidation)
Yes (power for state to acquire entity's shares/securities) Last resort. Only tool available for holding companies
No
No (but FDIC may keep bank open and grant assistance to it)
No
Yes (power to transfer all or part of business or ownership of entity's shares/securities to a private sector purchaser) Yes (power to transfer all or part of business to bridge bank owned by Bank of England)
Yes (power to transfer all or part of business to purchaser and to merge entity into another entity)
Yes (power to transfer all or part of business to purchaser and to merge entity into another entity)
Yes (power to transfer all or part of business to a bridge bank, in which Restructuring Fund may own shares) Yes (power to transfer all or part of business to an entity, even if not a bank, in which Restructuring Fund may own shares)
No (but may be able to use bridge bank to receive assets without acquiring deposit-taking business)
Yes (transfer of all or some assets to asset management vehicle for fair consideration)
Sea of Change
Regulatory reforms to 2012 and beyond May 2011
US FDIC powers
No (but debts may be converted as part of acquisition of shares/securities when using other tools)
No (however, a bank initiated reorganisation plan may approve write down or conversion of debts, but the plan requires the approval of a majority by number and value of each class of affected creditors) No liquidation priority
No
Depositor priority
No liquidation priority
Yes (insured and uninsured deposits have priority in receivership) FDIC under general fiduciary duty to all claimants, including holders of unsecured debt FDIC under general duty to act to maximize value of assets and minimize losses FDIC must also choose resolution method that has least cost to deposit insurance fund (absent a systemic significance determination)
Transfer of shares and other securities: compensation payable Sale of part of business: compensation if any creditor worse off than in insolvency proceedings Any other interference with property rights: compensation payable Compensation valuation may assume that insolvency proceedings
Sale of business/bridge bank: transferring bank remains liable for transferred liabilities (but limited to the amount that could have been recovered in a liquidation and only to extent recovery not possible from transferee/bridge bank) Compensation payable to transferring bank if net amount of transferred assets is positive (shares in bridge bank entity or cash), but no other compensation
FDIC under general duty to act to maximise value of assets, minimise losses, mitigate risk and avoid moral hazard While FDIC can make additional payments to some of similarly situated creditors for specific purposes, FDIC's interim final rules specify that it cannot make additional payments to shareholders, subordinated debt holders and bondholders
Sale of business tool: less costly than alternatives Bridge bank: residual entity receives net residual value realised from sale of bridge bank Sale of part of business: compensation if any creditor worse off than in liquidation Any other interference with property rights: compensation if any creditor worse off than in
Sea of Change
Regulatory reforms to 2012 and beyond May 2011
US FDIC powers
US Dodd-Frank Act orderly liquidation authority (OLA) Act provides that creditors will receive no less than they would have received if the entity had been liquidated in bankruptcy proceeding
likely alternative Compensation arrangements may include proceeds from onward disposal of entity/business
payable even if retained creditors worse off than in liquidation (and transferring bank may have to compensate transferee if net amount of transferred assets is negative)
liquidation
Sea of Change
Regulatory reforms to 2012 and beyond May 2011
Yes (all senior debt other than deposits, secured debt, short term debt, derivatives and trade creditors) Newly issued debt only. Debt to contain contractual clauses recognising statutory powers of authorities to write down/convert debt
Yes (institution required to maintain specified volume of senior debt eligible for write down/conversion) Newly issued debt only. Debt to contain contractual clauses recognising statutory powers of authorities to write down/convert debt
No
Sea of Change
Regulatory reforms to 2012 and beyond May 2011
European Commission comprehensive approach Trigger Conditions for entry into resolution
Basel non-viability proposals contractual method (1) a decision that a write-off, without which the firm would become non-viable, is necessary, as determined by the relevant authority; or (2) the decision to make a public sector injection of capital, or equivalent support, without which the firm would have become non-viable, as determined by the relevant authority
Basel non-viability proposals statutory method Jurisdiction has laws that require instruments to absorb loss: (a) on happening of triggers specified for contractual method OR (b) in any event before taxpayers exposed to loss (subject to regulatory peer review and disclosure requirements) 100% write down or conversion into equity (at ratio determined by authorities) Possibly, other methods for absorbing losses allowed Any issuance of equity must occur prior to any public sector injection of capital to avoid dilution of capital provided by the public sector
Resolution power
Write down or convert into equity Appears to assume 100% write down/conversion for subordinated debt Size of write down/conversion (and conversion ratio) of senior debt determined at authorities' discretion (possibly subject to cap)
Write down or convert into equity Appears to assume 100% write down/conversion for subordinated debt Unless fixed in instrument, size of write down/conversion (and conversion ratio) of senior debt determined at authorities' discretion
100% write down or conversion into equity (at ratio specified in instrument or determined by authorities) Any issuance of equity must occur prior to any public sector injection of capital to avoid dilution of capital provided by the public sector
Sea of Change
Regulatory reforms to 2012 and beyond May 2011
Basel non-viability proposals contractual method Not required for Basel eligibility Not required for Basel eligibility None, because contractually determined (unless conversion ratio not specified in instrument)
Basel non-viability proposals statutory method Not required for Basel eligibility Yes
Yes
Yes
No creditor worse off than in liquidation So far as possible, preserve ranking of claims in insolvency Possible cap on level of write down/conversion for senior debt
No creditor worse off than in liquidation (unless write down rate or conversion ratio specified in instrument)
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